Helge Årsheim

The Juridification of Religion

This article sets out to explore the extent to which developments currently taking place at the interface between law and religion in domestic, regional and international law can be conceptualized as instances of larger, multidimensional processes of juridification. We rely on an expansive notion of juridification, departing from the more narrow sense of juridificiation as the gradually increasing “colonization of the lifeworld” proposed by Jurgen Habermas in his Theory of Communicative Action (1987; Vol. 2, Beacon Press). More specifically, the article adapts the multidimensional notion of juridification outlined by Anders Molander and Lars Christian Blichner in their article ‘Mapping Juridification’ (2008; 14 European Law Journal 36), and develops it into a more context-specific notion of juridification that is attendant to the specific nature of religion as a subject matter for law.

Secularist Suspicion and Legal Pluralism at the United Nations

Drawing on a secularist view of religion as primarily a private matter for individuals, the international discourse on human rights has historically considered alternative bodies of law and legal reasoning to be inherently suspect. This ‘secularist suspicion’ has been particularly pronounced towards religious and customary forms of law, which are commonly seen as challenges to the sovereignty and hegemony of human rights law. Through a close reading of the practice of United Nations committees monitoring racism and women’s rights from 1993 to 2010, the development of a gradual divergence in their views of legal pluralism is explored. It is suggested that these views stem from different understandings of what religion is and should be in law, politics and society. Left unattended, this divergence may threaten the conceptual unity and holism of the human rights enterprise.

Whose Religion, What Freedom? Discursive Constructions of Religion in the Work of UN Special Rapporteurs on the Freedom of Religion or Belief

The chapter addresses the re-emergence and increased assertiveness of religion as a significant factor in international affairs in the decades since the end of the Cold War. This dynamic has created renewed political, legal, and social interest in religious organizations, their doctrines, and the behavior of their adherents. Such a ‘comeback’ of religion — as well as its analysis in academic disciplines, such as law and political science — constitutes a new and unfamiliar discursive field (episteme) for disciplines that have traditionally engaged themselves extensively with religion, such as theology, religious studies, anthropology, and sociology. This chapter has two aims: First, it maps these new discursive surroundings, presenting key insights in the new literature on religion from unfamiliar disciplines, with a particular emphasis on the rise of the interdisciplinary, thematic subfield of ‘Law and Religion’. Second, it translates these insights into a set of research questions that guide a close, textual analysis of the work of four consecutive special rapporteurs on the freedom of religion or belief, appointed by the UN Human Rights Commission and the UN Human Rights Council from the beginning of the mandate in 1986 up to the present. Special rapporteurs are key actors in the international human rights monitoring system and regularly issue observations and recommendations to states regarding the role and status of religion in society. Starting well ahead of the re-emergence of religion on the world stage, the collective output of the special rapporteurs offers a unique opportunity to trace the shifting discursive boundaries of religion and assess the consequences of these shifts. In conclusion, the chapter categorizes the different discursive strategies employed by each special rapporteur and proposes increased involvement between future mandate-holders and the scholarly community.